Federal Trade Commission v. Springtech 77376, LLC et al

Filing 112

ORDER TO SHOW CAUSE RE DEFENDANT GLASSEL'S REPRESENTATION Show Cause Response due by 3/16/2018.. Signed by Judge Phyllis J. Hamilton on 2/23/2018. (pjhlc1, COURT STAFF) (Filed on 2/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FEDERAL TRADE COMMISSION,

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Plaintiff,

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United States District Court
Northern District of California

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v.
SPRINGTECH 77376, LLC, et al.,

Case No. 12-cv-04631-PJH
ORDER TO SHOW CAUSE RE
DEFENDANT GLASSEL'S
REPRESENTATION

Defendants.

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Defendant Dave Glassel is represented in this action by attorneys George

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Frederick May and Kirk Douglas Butterwick, serving as local counsel. Dkts. 16–17. Each

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has filed an appearance in this case, and neither has withdrawn as counsel of record.

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Mr. May signed the stipulated injunction on behalf of his client and entered by the court

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on July 18, 2013. Dkt. 73.

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However, in response to plaintiff FTC's motion for contempt (Dkt. 91) and motion

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to modify the injunction (Dkt. 92) filed on January 9, 2018, and noticed for hearing on

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February 21, 2018, Glassel filed a combined opposition brief, which he signed purporting

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to be acting pro se. Dkt. 105. Glassel had not previously substituted himself to act as

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pro se in this matter, and neither attorney of record had requested to withdraw from

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representing Glassel.

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Neither Glassel nor his attorneys appeared at the hearing on February 21, 2018.

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Because counsel for the FTC represented that she thought Glassel intended to appear,

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court staff contacted him by phone to ascertain whether he was planning to attend.

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Glassel advised that he would not be attending. He did not request a continuance or to

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appear by telephone. The hearing proceeded in his absence.

It is Glassel's choice whether to attend noticed hearings in this case. However,

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the court's concern is not that Glassel chose not to attend the hearing, but that he now

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appears to be representing himself even though he has not notified the court that he has

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discharged his lawyers. Although the right to proceed pro se in civil actions in the federal

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courts is guaranteed by 28 U.S.C. § 1654, the right is not unqualified. For example, a

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party seeking to represent himself must “clearly and unequivocally discharge any lawyer

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previously retained.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). A party does

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not have a right to self-representation and representation by counsel at the same time.

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Id.; Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir. 1958); see also United States v. Olano,

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62 F.3d 1180, 1193 (9th Cir. 1995); United States v. Bergman, 813 F.2d 1027, 1030 (9th

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United States District Court
Northern District of California

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Cir. 1987) (“A criminal defendant does not have an absolute right to both self-

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representation and the assistance of counsel.”).

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Similarly, counsel who make a formal appearance in this court are obligated to

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follow the Civil Local Rules of this court when withdrawing from a pending matter. Civil

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Local Rule 5-1(c)(2)(C) provides: “If a particular counsel ceases to be involved with a

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case when the party is still represented by other counsel, a Notice of Change in Counsel

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must be e-filed.” Neither May nor Butterwick have made such a filing. If one of Glassel’s

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two attorneys withdraws, “[t]he withdrawal of a party’s sole remaining counsel is

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governed by Civil L.R. 11-5 and requires an order of the Court.” Civ. L.R. 5-1(c)(2)(D). A

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party’s sole remaining counsel can only be relieved by court order, which may be granted

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when accompanied by simultaneous pro se appearance of the party. Civ. L.R. 11-5(a)–

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(b). Accordingly, counsel may be relieved by court order if a request to withdraw is

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accompanied by defendant’s substitution of himself to act pro se in this action.

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THE COURT hereby ORDERS defendant Glassel to advise the court no later than

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March 16, 2018 whether he has discharged his attorneys and wishes to substitute in

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himself to proceed pro se, or whether he is still represented by his attorneys. If the latter,

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Glassel may not continue to file pleadings and briefs in this case.

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THE COURT hereby ORDERS attorneys George May and Kirk Butterwick to
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explain their status as Glassel's counsel of record and TO SHOW CAUSE why sanctions

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should not be imposed for their apparent failure to comply with the local rules of this

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court.

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Responses required by this order must be filed by March 16, 2018. In lieu of

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responses, Glassel may file a substitution of himself pro se, and counsel may file a notice

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to withdraw.

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IT IS SO ORDERED.
Dated: February 23, 2018
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

United States District Court
Northern District of California

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